I.

INTRODUCTION

Nemo debet prodere se ipsum.1

The right against self-incrimination first emerged in the medieval law of the Roman church
by the Latin maxim Nemon tenetur seipsum accusare which means that No man is obliged
to accuse himself. The right then gradually evolved in common law through protests against
the inquisitorial and other unjust methods of interrogation by police of accused persons, in
England2. The provision is one of the fundamental principle in common law criminal
jurisprudence which has been incorporated in the Constitution of the United States under the
Fifth Amendment3. In India, the immunity is only specific, that is, available only to persons
suspected of criminal offences. The privilege in criminal law is based on and determined by
section 161(2) of the Code of Criminal Procedure 4, section 27 of Indian Evidence Act 5 and
Article 20 (3) of the Constitution of India. Under the Indian Constitution the right against
self-incrimination is given to accused who under is under testimonial compulsion through
Article 20(3) No person accused of an offence shall be compelled to be a witness against
himself. In 1978, under the 44th Amendment, and Article 20 of the Constitution of India
was given non-derogable status i.e. the state has no legal basis, even in a state of emergency,
to refuse the exercise of this right. But from the beginning there has been ambiguity in
deciding what evidences should be granted protection and there has also been conflicts
between Article.20 if the Indian constitution and the Indian evidence Act,1872 6. Hence this

1 Translated from Latin maxim No man is bound to betray himself.

2 180th Report of the Law Commission of India, Article 20(3) the Constitution of India and the Right
to Silence, 3, (2002).

3 Fifth Amendment, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1789

4 Code of Criminal Procedure, 1973: Article 161(2) such person shall be bound to answer truly all
questions relating to such case put To him by such officer, other than questions the answers to which
would have a tendency to Expose him to a criminal charge or to a penalty or forfeiture

5 Indian Evidence Act, 1872: How much of information received from accused may be proved
Provided that, when any fact is deposed to as discovered in consequence of information received from
a person accused of any offence, in the custody of a police officer, so much of such information
whether it amounts to confession or not, as relates distinctly

6 State of Uttar Pradesh v. Deomen Upadhyaya, AIR 1960 SC 1125(Supreme Court of India)
led to judgements which were in conflict with what amounts to testimonial compulsion and
what evidences collected by investigating trial agencies are to be considered valid without
violating Article 20. All these judgments were then referred to the Apex court, which further
clubbed them to an eleven judge bench and hence the landmark judgement of tate of Bombay
v. Kathi Kalu Oghad7 which is a landmark case. M.P. Sharma v. Satish Chandra 8 was the last
significant ruling on the interpretation of Part III of the Constitution.

7 State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 (Supreme Court of India).[Oghad]

8 M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 (Supreme Court of India).[M.P Sharma]